IMRAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2289/2020

[2025] HKCFI 6361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2289 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 19 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 November 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 24 September 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except the risk torture ground. The claim on the risk torture ground was dismissed by the Director on 31 January 2012, against which appeal to the Board was dismissed on 20 March 2012. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002289_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by a customer due to a business conflict. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 9 December 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 contained no grounds at all. In the supporting affirmation, the applicant only raised 2 grounds. The first ground concerned the Director and was therefore totally irrelevant. As for the second ground, the applicant complained that the Board’s Decision was “too wrong” and that he did not get justice. If he were to be refouled, his enemy in Pakistan would kill him.

6.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant asked the court to look at his case afresh as he still had lots of problems at home.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the Board found that the applicant’s account of event was credible. However, having regard to the frequency of ill-treatment from the customer, Sotah, and his people, the Board found that the claimed injuries did not meet the requisite level of severity. The Board found that the applicant did not suffer any injuries during the past conflicts with Sotah. The Board found that despite the frequency of threats by Sotah and his men, they had no intention to escalate their death threats. The Board therefore concluded that there was no genuine and substantial risk that the applicant would be killed or harmed by Sotah. The Board further found that both state protection and internal relocation were reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that the Board’s Decision seems to be irrational, unreasonable and is tainted with procedural unfairness.

Assessment of future risk of harm

9.  In the Board’s Decision, the Board’s conclusion of the lack of future risk of harm was based on its finding that the applicant did not suffer any injuries during the conflicts with Sotah (Board’s Decision [39]). This finding however appears to have been based on the Board’s failure to have regard to the injuries the applicant suffered in the 2^nd Incident. Since the Board accepted the applicant’s account of event, the Board would therefore also have accepted the applicant’s evidence that in the 2^nd Incident, Sotah came to the House with 10-12 people and beat him up with hockey sticks for about 4 minutes. The applicant was badly injured and required 8 stitches on his left hand (Board’s Decision [25]). In the circumstances, the Board had failed to properly consider the injuries the applicant had in fact suffered when assessing the applicant’s past ill-treatment. The misapprehension of the evidence would seem to have procedurally tainted the Board’s Decision in its conclusion on the lack of future risk of harm.

10.  Further, in discussing the applicant’s background, the applicant accepted that the applicant’s business was a family business. According to the Director’s Decision (at Section (V)), the applicant had submitted 5 FIR as the supporting documents. These various FIR showed that the applicant’s father (Muhammad Boota) and his other sons (Muhammad Ali, Ahmed Ali and Irfan) were also involved with the family business. The family business was in financial difficulty and the company was therefore unable to repay its customers, including Sotah (Director’s Decision [42(a), (b) and (c)]). Hence, the applicant’s evidence concerning the 3^rd Incident in which Afran was badly injured and that it was believed that the assault was connected with Sotah and his people (Board’s Decision [9.20] to [9.22]) and the 4^th Incident (Board’s Decision [9.23] and [9.25]), which evidence the Board accepted, should have been properly taken into account when assessing the applicant’s future risk of harm. Likewise, the Board had also seemed to have not properly considered the applicant’s evidence (Board’s Decision [9.26]) that his brothers, Muhammad Ali and Ahmed Ali, had gone missing due to the continuous harassment from Sotah (which the Board accepted).

11.  The Board is duty-bound to consider all materials placed before it in making its risk assessment, and it is not restricted to only take into account the parameters of what was presented in the non-refoulement claim form. High standards of fairness and anxious scrutiny require a decision maker to show in his or her reasoning that every factor which might be in favour of an applicant has been properly taken into account: See Ina Astuti v Torture Claim Appeal Board[4] and R (YH) v Home Secretary[5].

12.  In view of the Board’s failure to take all the evidence that the Board accepted into account when assessing the applicant’s risk of harm, the Board’s Decision is arguably irrational, unreasonable and tainted with procedural unfairness.

Failure to properly consider state protection

13.  In its assessment of state protection (Board’s Decision [42]-[44]), despite the Board’s references to the COI in the Director’s Decision, the Board does not appear to have considered the specific risks faced by the applicant. The various COI cited by the Director (Director’s Decision [24]-[26]) which the Board accepted, it appears to have been mostly related to anti-corruption efforts, but do not shed light on the efforts made by the relevant state authorities on illegal and violent debt collection and loan sharking, which Sotah and his men were engaged in. Particularly, in the present case, Sotah was a powerful political figure (Board’s Decision [18]) and that he had been promoted to a more senior position, his wide power connection enabled him to locate the applicant easily (Board’s Decision [37]).

14.  Hence, arguably there is no COI before the Board that supported the Board’s finding of the reasonable availability of state protection against harm from loan sharks that involved a powerful and senior politician with wide connection. The Board’s conclusion on the availability of reasonable state protection is therefore arguably irrational. The Board has failed to demonstrate that it properly and independently assessed COI, and thus the Board’s Decision is tainted with procedural unfairness: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34].

15.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

16.  In the premises, and for all the given reasons, I am of the view that the applicants’ Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  Accordingly, I grant leave to the applicants to apply for judicial review of the Board’s decision, and direct that they shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

18.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

19.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

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